State v. Atwood

438 A.2d 387 | Vt. | 1981

Per Curiam.

The defendant received a uniform traffic ticket from a Montpelier police officer for traveling 40 miles per hour in a 25-mile-per-hour zone. The ticket, which under Vermont, law serves as the information, 23 V.S.A. § 2203, alleged violations of 123 V.S.A. § 1007 and Montpelier city ordinance.' 10-300. The reference to 123 V.S.A. § 1007 was intended to refer to 23 V.S.A. § 1007. Defendant pleaded not guilty and presented his case to a judge sitting without a jury. He was found guilty, fined $30, and appeals his conviction and fine to this Court.

23 V.S.A. § 1007 authorizes the legislative body of a municipality to establish the speed limits prevailing within its borders. Though the traffic ticket alleges a violation of a municipal ordinance, our search finds no mention in the record of the ordinance, much less of proof that it had legal effect. Under our law, a 'court cannot take judicial notice of a local ordinance. Hambley v. Town of St. Johnsbury, 130 Vt. 204, 208, 290 A.2d 18, 20 (1972); W. R. Sorg & North Hero House, Inc. v. North Hero Zoning Board of Adjustment, 135 Vt. 423, 424, 378 A.2d 98, 100 (1977).

To be fatal, a variance between the allegations in an indictment or information and the proof offered at trial must be material and prejudicial. State v. Lamelle, 133 Vt. 378, 381, 340 A.2d 49, 51 (1975). Here, the evidence presented at trial proved only that defendant travelled 40 miles per hour. In the absence of proof that a legally effective ordinance required a lower speed, he committed no offense. Thus the variance is both material and prejudicial.

Reversed, vacated, and judgment of acquittal entered.